Skip to Main Content
 

The Supreme Court Needs to Get Smarter About Politics

October 11, 2013, The Washington Post

The Supreme Court Needs to Get Smarter About Politics

In his article for The Washington Post, Trevor Potter discusses McCutcheon v. Federal Election Commission and the Supreme Court's limited knowledge of campaign finance law and political fundraising.

Excerpt taken from the article.

At one point during the oral argument Tuesday in the case of McCutcheon v. Federal Election Commission, Justice Antonin Scalia remarked that he didn't understand the legislation in question.

"This campaign finance law is so intricate that I can't figure it out," he said. "It might have been nice to have the, you know, the lower court tell me what the law is."

Scalia meant to be playful. But as the argument progressed, it became clear that the justices really don't know enough about money in politics. They expressed skepticism about "wild hypotheticals that are not obviously plausible" — when in fact we've already seen those scenarios play out. They talked a lot about the FEC's "earmarking" and "coordination" rules, but they didn't seem to recognize that those rules are impossible to police and that a dysfunctional FEC isn't doing much policing anyway. And the conservatives on the court seemed to fail to understand what leads to corruption or the appearance of corruption — with Justice Samuel Alito going so far as to suggest that giving a very large check to a political fundraising committee isn't inherently a problem, because the committee could take the money and burn it. "Well, they're not," replied Solicitor General Donald Verrilli. "They are not going to burn it." 

Related Professionals

Related Practices